(Prayer: Second Appeal under Section 100 of CPC against the judgment and decree dated 25.1.2008 made in A.S.No.4 of 2007 on the file of Principal District Court, Thanjavur confirming the judgment and decree dated 30.8.2006 made in I.A.No.239 of 2004 in O.S.No.114 of 1985 on the file of Principal Sub Court, Kumbakonam.)
1. Estate of one Abdul Latiff and his spouse Fathima Beevi @ Batcha Ammal is the subject matter of a partition suit, out of which the instant second appeal arises.
2. Abdul Latiff and Fathima Beevi @ Batcha Ammal had four sons and four daughters, i.e., 8 children in all. Abdul Latiff died in 1965 and Fathima Beevi @ Batcha Ammal died in 1982. Thereafter, one son P.Abdul Jabbar filed a partition suit against his seven siblings. This partition suit is O.S.No.114 of 1985 on the file of the 'Subordinate Judge's Court at Kumbakonam', which shall hereinafter be referred to as 'trial court'. In this suit in the trial court, as mentioned supra, the sole plaintiff arrayed his seven siblings as defendants 1 to 7. Tenants / lessees in various properties forming part of the aforesaid estate were arrayed as co-defendants, i.e., defendants 8 to 15. There are four schedules to the plaint, i.e., Schedules A, B, C and D. Schedule A is the genealogy tree. Schedule B consists of 36 items of immovable properties, which according to the plaintiff are his father Abdul Latiff's properties. Schedule C consists of five items of immovable properties and according to plaintiff, this is mother Fathima Beevi @ Batcha Ammal's properties. Schedule D also consists of five items, but all five items are movable properties.
3. There is no dispute or disagreement that Abdul Latiff, his spouse and all parties to the lis who are entitled a share in the estate profess Islamic Faith owing to which they are governed by the Muslim Succession Act. Therefore, the four sons are entitled to 2/12 share each and four daughters are entitled to 1/12 share each. On this basis, aforesaid suit in the trial court was launched with prayers for partition of plaintiff's 2/12 share in Schedules B, C and D properties (which shall hereinafter collectively be referred to as 'suit properties' for the sake of brevity) and for actual distribution of plaintiff's 2/12 share by metes and bounds by appointing Commissioner for partition of properties. Prayer for accounts and other usual residuary prayer and prayer for costs also form part of the prayer. Defendants entered appearance and pleadings were completed.
4. To summarize and put it in a nutshell, defence was threefold. First limb of defence was that item Nos.8 and 34 in B Schedule are self acquired properties of defendant No.3, i.e., P.A.Ashraf Ali (not part of the estate) and therefore not available for partition. Second limb of defence was item Nos.23, 31 and 33 comprised in S.No.29/6 in B Schedule belong to third parties (not part of the estate) and therefore not available for partition. Third limb of the defence was that the suit for all practical purpose is for partial partition, as according to defendants, certain properties in Singapore and Malaysia are also part of estate of late Abdul Latiff as well as his spouse Fathima Beevi @ Batcha Ammal and the same have not been included.
5. In the light of the very narrow scope of the instant second appeal (there shall be elaboration on this infra), it may not be necessary to delve in great detail about what were the issues that were framed in the trial court and how the rival contentions were dealt with and the reasonings for conclusions qua preliminary decree.
6. Suffice to say that the trial court passed a preliminary decree vide judgment and decree dated 28.11.1994. To be noted, this being a partition suit, 28.11.1994 decree of trial court was a preliminary decree. In short, the suit prayers were acceded to vide preliminary decree. Thereafter, plaintiff took out an application in I.A.No.239 of 2004 with prayers for actual partition of plaintiff's 2/12 share by appointment of a Commissioner and for delivery of possession of the same to plaintiff. This application shall hereinafter be referred to as 'final decree application' for the sake of convenience and clarity. There is no dispute or disagreement before this Court that this final decree applica
Please Login To View The Full Judgment!
tion was filed invoking Order XXVI Rule 13 of 'Code of Civil Procedure, 1908' ('CPC' for brevity). In the final decree application, trial court originally appointed one A.Rajavelu as Advocate Commissioner, but he later returned the commission warrant. Thereafter, trial court appointed one Mr.K.R.Vasudevan, a practicing Advocate at Kumbakonam as Advocate Commissioner. The Advocate Commissioner filed a report dated 06.08.2006. Trial court accepted the report of Advocate Commissioner dated 06.08.2006 and passed an order dated 30.08.2006 in the final decree application. A perusal of the order dated 30.08.2006 in the final decree application reveals that this is a final decree in the main suit for all practical purposes. The report of the Advocate Commissioner dated 06.08.2006 is the eye of the storm qua proceedings before this court. It can also be described as the epicenter of the instant second appeal in this Court. In other words, this report of the Advocate Commissioner dated 06.08.2006 is the fulcrum around which the instant second appeal turns.
7. Against the aforesaid order in the final decree application / final decree, defendants 1, 6 and 7 filed a regular first appeal under Section 96 CPC. This regular first appeal is A.S.No.4 of 2007 on the file of the 'Principal District Judge's Court, Thanjavur', which shall hereinafter be referred to as 'first appellate court' for the sake of convenience and clarity.
8. This regular first appeal was predicated and pivoted primarily on the ground that the aforesaid Advocate Commissioner's report is in complete breach of the mandate and obligations under Order XXVI Rules 13 and 14 of CPC, resulting in several discrepancies and infirmities in the same. To mention a few as an illustration without getting exhaustive, it can be said that the complaint against Advocate Commissioner's report is that the Advocate Commissioner did not take the help of a Surveyor though the warrant directs him to do so, that the Commissioner has taken guideline values overlooking the market value, that the Commissioner has not divided the properties into good soil and bad soil, that the Commissioner has taken depreciation value arbitrarily without any basis or formula for the same and that there is misdescription of several properties. Most importantly, it was urged that if Advocate Commissioner had taken the assistance of a Surveyor as directed in the warrant, some properties of strangers and third parties would not have got included in his report and consequently the decree.
9. Another major complaint is that properties which are subject matter of the decree are spread over three different villages, viz., Papanasam, Rajagiri and Semmangudi, all in Thanjavur district. Further more, as would be evident, there are 36 items of properties in B Schedule and 5 items each in C and D Schedules. There are 41 items of immovable properties and 5 items of movable properties. Under such circumstances, the report of the Advocate Commissioner says that the entire local inspection was completed in one day. In other words, it is the complaint of the appellants before the first appellate court that if local inspection had been done qua all these 41 items of immovable properties spread over three different villages even if it had been done from dawn to dusk, the exercise could not have been completed in one day, much less could it have been done without the help of a Surveyor.
10. In short, the complaint of aforesaid three defendants, who went on appeal by filing the aforementioned regular first appeal is that the Advocate Commissioner has done merely a table work. Advocate Commissioner's report is merely a table work done in office and there is no local inspection is their say. It is also their complaint that all these have resulted in complete inequitable distribution of the estate. The legal plea was that the court had an obligation to examine the report in accordance with the mandate in CPC, the trial court ought not to have accepted the same mechanically and the first appellate court erred in confirming the same.
11. To be noted, after contest and hearing, the first appellate court dismissed the appeal suit, i.e., A.S.No.4 of 2007 vide judgment and decree dated 25.01.2008. Some of the grounds which weighed with first appellate court resulting in dismissal are that defendants, who were in appeal, had not adduced either oral or documentary evidence before the trial court during final decree enquiry, that defendants in appeal had not filed objections to the Advocate Commissioner's report and consequently, they have not raised objections with regard to values adopted by learned Advocate Commissioner. One other factor which appears to have weighed in the mind of the first appellate court is that the third respondent before it, i.e., Ashraf Ali is colluding with the appealing defendants with the common aim of depriving plaintiff from enjoying the fruits of the decree.
12. Aggrieved, the instant second appeal has been preferred by the appealing defendants, i.e., defendants 1, 6 and 7. Memorandum of grounds of appeal is dated 04.09.2008 and the second appeal was filed on 14.10.2008. Pending second appeal, defendant No.3 in the trial court, who is respondent No.3 before the first appellate court as well as this court, i.e., Ashraf Ali died and his legal heirs, namely, wife and three sons have been brought on record as respondent Nos.12 to 15 in the instant second appeal.
13. Mr.Raghuvaran Gopalan, learned counsel appeared on behalf of Mr.T.V.Sivakumar, counsel on record for appellants. Mr.Jegadeesan and Mr.N.Raju, learned counsel for Mr.V.Sasikumar, counsel on record for first respondent, who is the lone plaintiff before trial court, first respondent before the first appellate court and this court, appeared. Mr.Lakshmi Shankar, counsel on record appeared on behalf of respondent Nos.12 to 15, who, as mentioned above are legal heirs of deceased Ashraf Ali, who died pending instant second appeal. Mr.G.Manikadan, learned counsel appeared before this Court on behalf of learned counsel Mr.P.Radhakrishnan, learned counsel on record for respondents 2, 4 and 5. Respondents 7, 10 and 11, who were duly served did not enter appearance and their names were shown in the cause list. The appeal had also been dismissed against respondents 6, 8 and 9 As already mentioned supra, respondent No.3 died pending second appeal and therefore, his legal heirs were brought on record as respondents 12 to 15 This completes the array of parties and their respective counsel. Further, the second appeal had already been dismissed against respondents 6, 8 and 9 who did not choose to enter appearance.
14. Mr.Raguvaran Gopalan, learned counsel appearing for counsel on record for the appellants attacked the aforesaid Commissioner's report which is the epicenter of this second appeal, inter-alia, on the grounds on which Commissioner's report was attacked before the first appellate court. To be noted, the grounds on which the Commissioner's report was attacked / assailed before the first appellate court have already been set out supra. However, for the purpose of enumeration, grounds on which Advocate Commissioner's report is being assailed were placed before this Court in tabular form. Considering that the Commissioner's report is the epicenter / eye of the storm, this court deems it appropriate to reproduce the tabular column and the same reads as follows:
15. Mr.G.Manikandan, learned counsel adopted the submissions made by learned counsel Mr.Raguvaran Gopalan.
16. Mr.Lakshmi Shankar, learned counsel, made submissions on similar lines, but the distinct aspect of his submission is that respondent No.12 Noorjahan, who was brought on record after the demise of respondent No.3 Ashraf Ali (pending second appeal) has now noticed that some of her personal properties have also been included in the final decree. Learned counsel pointed out that she has filed an obstruction petition in the execution petition that has been launched for execution of the final decree. Learned counsel submitted that rights of respondent No.12 in this regard deserve to be reserved in any order that may ultimately be passed in this second appeal as it is his emphatic submission that respondent No.12 came to know that some of her personal properties have also been included in the final decree only after coming on record which happened vide order dated 26.11.2014 made by this Court in M.P.No.2 of 2013.
17. In response to these common submissions, Mr.Jegadeesan and Mr.N.Raju, learned counsel appearing for respondent No.1, who is the sole plaintiff in the trial court made submissions which can be broadly summarised as follows :
(a)Defendants 1, 6 and 7 in the trial court, who are appellants 1, 2 and 3 respectively in the instant second appeal did not file written statement in trial court and therefore, they cannot be heard to contend complaining of proceedings in the trial court;
(b)Appellants in the instant second appeal did not file any objection to Commissioner's report in the trial court and therefore, they cannot now pursue this appeal by pointing out infirmities in the report of the Advocate Commissioner;
(c)Three villages in which suit properties are spread are adjacent villages which lie in about 6 miles or in other words, 12 Kms. radius and therefore, it is possible to complete the local inspection in a day. Obviously, this submission was made on a demurrer;
(d)Advocate Commissioner cannot be faulted for not putting all parties on notice as some of them chose not to accompany the Commissioner inspite of being requested to do so. Obviously, this submission is also on a demurrer. Advocate Commissioner cannot be faulted for taking guideline value as that necessarily has to be the basis. Not to mention, this is also a demurrer submission.
18. This Court now proceeds to examine the rival submissions made at the hearing.
19. Appellants before this court not having filed written statement in the trial court is of no avail and is not of any relevance as the preliminary decree has been given a quietus. The suit is not being contested on merits. It is only the final decree application and the Advocate Commissioner's report therein that is in dispute in the instant second appeal. This takes this court to the next main issue in this second appeal.
20. There is no dispute or disagreement between parties that the three appellants herein in their capacity as defendants 1, 6 and 7 did not file any objection to the Commissioner's report before trial court. Can appellants, who have not filed objection to the Commissioner's report before the trial court, be now heard to contend in this second appeal assailing the order in the final decree proceedings by pointing out infirmities in the Commissioner's report. This according to this Court is the crux and gravamen of this second appeal.
21. In support of his contention, Mr.Jegadeesan, learned counsel appearing for first respondent pressed into service a reported judgment in A.I.R. 1920 Lower Burma 31 [Ma Dwe Vs. Ma Tin Lun]. This Ma Dwe case was pressed into service for the principle that proper time for objection is before trial court and that objections should not be raised in appeal. Learned counsel also pressed into service a judgment of learned Single Judge of Andhra Pradesh High Court reported in 2001 AIHC 4731 [Pamula Narsaiah and another Vs. Pamula Murali and others] for the principle that a second Advocate Commissioner cannot be appointed when objections have not been filed for the first Advocate Commissioner's report. In other words, this judgment being Pamula Narsaiah case is for the principle that second Advocate Commissioner cannot be appointed without scrapping / setting aside the earlier Commissioner's report.
22. Mr.Raguvaran Gopalan, learned counsel pressed into service a judgment of a Division Bench of this Court being Special Tahsildar and Land Acquisition Officer, Nagercoil Vs. Daisy Morayin and others reported in 2003-1-L.W. 91 for the proposition that even without filing objection in the court below, the same can be raised in appeal. Court ought not to accept the report mechanically because objections have not been filed / contra evidence has not been let in. Therefore, the Courts below accepting the report mechanically without adhering to the rigour of Rules 13 and 14 of Order XXVI CPC can certainly be assailed in appeal is his further say. Paragraph 12 of the said judgment was referred to and the same reads as follows :
"12. If the Commissioner is appointed only to note the physical features such as the existence of a building, details with regard to standing trees and location, there is no difficulty for the Commissioner to visit the property in the presence of both parties and file his report. Of course, the parties can file their objections to the Commissioner's report. Even without filing objections they can let in evidence contra to the Commissioner's report and in which case the Court is expected to examine the Commissioner, who is an Officer of the Court, as a witness so that the parties can cross-examine the Commissioner so also the Court.
Suppose if the Commissioner is called upon to give the age and value of the building and as to whether the soil is fit for construction purpose, then obviously he has to seek the assistance of an expert viz., a Civil Engineer. While the Commissioner files his report, he has to file the details of calculation furnished by the expert. In such case also it will be open to the parties to file their objections. Here again, even if they have not filed objection, they can let in oral and documentary evidence to substantiate the same and which may be contra to the Commissioner's and expert's report, in which case the Court has to examine the Commissioner and the expert as Court witness. In fact the Supreme Court has ruled that the report of the expert can be accepted if the same is based on relevant factual data or material and further he should be examined before the Court (AIR 1995 SC 840, Special Land Acquisition Officer v. S.O. Tumari). In both the above cases, even if the parties fail to file their objections and also examine witnesses to substantiate their stand, the Court is duty bound to examine the report of the Commissioner and satisfy itself about the correctness and acceptability of the same. It is not as if that the Court has to accept the report automatically and mechanically on the ground that no objections have been filed to the Commissioner's report and no contra evidence has been let in."
23. Learned counsel for appellants pressed into service a judgment of learned Single Judge of Kerala High Court being Dr.P.Subramaniam Vs. K.S.E. Board and others reported in AIR 1988 Kerala 169. This case law was pressed into service to highlight the scope of the court in accepting or rejecting the Commissioner's report. It is for the specific principle that the scope of the court in accepting or rejecting the report of an Advocate Commissioner when Commissioner is appointed under Rule 14 of Order XXVI CPC is unlike Rules 10 and 12 of Order XXVI. This is articulated in paragraph 9 of the said judgment, which reads as follows:
"9. It is not as if those who framed the Code were unware of the distinction between the approaches in Rules 10 and 12 of O.26 on the one hand, and in Rule 14, on the other. While the Commissioners contemplated in the first two rules are those appointed during the trial of a suit, the Commissioner in Rule 14 is one appointed after the passing of a preliminary decree in a partition suit though, technically, it may be said that the passing of a preliminary decree does not have the effect of terminating the suit. That is perhaps why, unlike Rules 10 and 12, Rule 14 does not insist that the report of the Commissioner shall automatically form part of the evidence in the suit; and that also may be the reason why Rule 14 confers specific power on the court to confirm, vary or set aside a commission report and also to issue a new commission. At any rate, white Rule 14 specifically contemplates the setting aside of a commission report and the appointment of a new commissioner, Rules 10 and 12 only speak of ordering "further enquiry". The difference in language is not minor; and unless one is prepared to totally ignore the importance of language in construing statutory provisions, it is difficult to say that the power conferred under Rules 10 and 12 is similar to the one under Rule 14. "
24. Learned counsel Mr.Raguvaran Gopalan also submits that Rule 14 of Order XXVI CPC is mandatory and it is not just directory. In support of this proposition, a Division Bench judgment of this Court being K.Vijayalakshmi and others Vs. K.Sashikanth reported in 2015 (1) MWN(Civil) 214 was pressed into service. Paragraphs 19 and 20 of the said judgment are relevant and the same reads as follows :
"19. After passing the final decree, it is open to any one of the parties to initiate proceedings for passing a Final Decree. The Court after taking cognizance of the Final Decree Application is obliged to proceed in accordance with Order 26, Rule 13 of the Code of Civil Procedure. The Court would appoint an Advocate Commissioner to partition the property by metes and bounds. The Commissioner appointed for such purpose acts as the Authorised Officer of the Court and as such he is duty bound to distribute the property among the parties taking into account their respective shares and in the light of the direction given by the Court in the warrant of appointment on the basis of the Preliminary Decree. Rule 14 of Order 26, contained a legislative mandate that the Commissioner would allot such share to the parties, meaning thereby joint property should be divided in specie and each one of the sharers should be given a specific item. Sub-rule (2) of Rule 14 of Order 26 mandates that the Commissioner shall prepare and sign the Report apportioning the share of each parties by metes and bounds. This makes the position very clear that the Commissioner is obliged to effect physical division of property into two or more shares. Since a co-owner is entitled, as a matter of right, to partition the co-ownership property, he is also entitled to claim allotment of a specified extent of property to him. The possible difficulty to the other sharers in case the property is divided into two or more shares, cannot be a ground to deny physical division of property and separate allotment to the co-owners in accordance with the share position.
20. In case the Advocate Commissioner has divided the property by metes and bounds, taking into account the respective shares of parties and adjusted the share value by fixing owelty amount, the Court under normal circumstances should not disturb such division. The Commissioner in a given case is of the view that the suit property is incapable of division in specie, it is open to him to allot the entire property to one party on payment of owelty amount, which is otherwise called as "just compensation" to other sharers. While making such allotment by accepting the method suggested by the Advocate Commissioner, the Court should balance equity by allowing the major sharers to retain the property in case they have made a request for joint allotment and to pay just compensation to the minor share holder."
25. In Ma Dwe case rendered on 25th November, 1918, the Court did not go into the scope of Rules 13 and 14 of Order XXVI CPC. The issue as to procedure to be followed by Advocate Commissioner under Rule 14 of Order XXVI did not fall for consideration and that only a general principle that proper time for objection is before trial court and not the appellate court has been laid down.
26. In contrast, the aforesaid two Division Bench judgments of our High Court being Daisy Morayin and K.Vijayalakshmi as also Dr.P.Subramaniam case rendered by learned Single Judge of Kerala High Court go into the scope of Rules 13 and 14 of Order XXVI CPC, the manner in which the Commissioner has to function and discharge his duties under the said rules, as also the powers and duties of the Court in accepting or rejecting such a report. Therefore, this Court has no difficulty in respectfully following the principle laid down by two Division Benches of this Court and also agreeing with the view taken by the learned Single Judge of Kerala High Court. In other words, this Court comes to a conclusion that Rules 13 and 14 of Order XXVI CPC are mandatory and the procedure therein has to be strictly adhered to. When the same has not been done, a party, who is aggrieved can certainly raise objections even at the appellate stage as it is a partition suit where the legal theory is that there are no plaintiffs and defendants and all parties to the lis are plaintiffs. In other words, the objective of a partition suit is equitable distribution of the estate and if there is any slur on such equitable distribution, it can certainly be raised at the appellate stage. However, this cannot be laid down as an absolute rule with no exceptions. It has to be dealt with on a case to case basis. The nature of the objections and the nature of infirmities pointed out in the Advocate Commissioner's report have to be sifted and weighed in a given case on the basis of factual matrix of each case. It has to be tested on a case to case basis.
27. In the instant case, three infirmities have very strongly weighed in the mind of this Court. One is that the Advocate Commissioner's report says that the inspection of 41 items of immovable properties spread over three different villages in 12 Kms radius has been completed in one day. Two is that the Advocate Commissioner has not taken the assistance of a Surveyor though warrant of the Commission specifically directs him to take the assistance of a Surveyor. Three is, admittedly, notices to parties were sent only by Certificate of Posting and the fate of the notices is not clear. Therefore, considering the serious nature of infirmities that are pointed out, this Court is of the view that this is a fit case where permission can be given to raise objections to Commissioner's report at the appellate stage though they have not filed objections before trial court, more so in the light of the fact that this is a partition suit and equitable distribution is the ultimate objective. In other words, the partition suit is only a vehicle to achieve equitable distribution of an estate amongst the legal heirs who are entitled to the same as a matter of right / succession. It is also to be noted that various infirmities pointed out by appellants and placed before the Court in tabular form are not seriously disputed. Further, it weighs in the mind of the court that infirmities are of such a nature that it very seriously affects the equitable distribution of the estate.
28. Learned counsel for the appellants also pressed into service a Full Bench judgment of this Court rendered in M/s.Sakthi & Co. Vs. Shree Desigachary reported in 2006-2-L.W. 297 to say that the market value should be the guiding factor in cases of this nature. However, in the light of the order that this court proposes to pass now, it may not be necessary to go into that aspect of the matter.
29. This takes us to substantial questions of law that fall for consideration. Appellants as protagonists of the instant second appeal have propounded / proposed as many as four questions of law in the memorandum of grounds of appeal and styled the same as substantial questions of law. However, one question, i.e., question No.2 proposed in the memorandum of grounds of appeal, appeals to this Court as substantial question of law. In the hearing, it emerged that the language in which it is couched requires to be rephrased. Therefore, the second question of law as rephrased and formulated would read as follows :
"Are courts below correct and justified in passing the final decree by ignoring and giving a go-bye to settled principles and propositions of law that when the procedure adopted by the Commissioner is flawed and illegal, a final decree cannot be passed on the basis of the same?"
30. To be noted, in support of the contention that substantial question of law need not always be a question that is debatable or touches upon an issue that is res integra and that it can also be in a contrary situation wherein and whereby legal position is clear either on account of express provisions of law or binding precedents, but the court below has decided the matter either by ignoring or acting contrary to such legal principle. Learned counsel pressed into service Hero Vinoth Vs. Seshammal reported in (2006) 5 SCC 545. Relevant paragraph is sub-paragraph (ii) of paragraph 24 of the said judgment and the same reads as follows :
"24. The principles relating to Section 100 CPC relevant for this case may be summarised thus:
(i) x x x x x x x x x x
(ii) ......A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle......."
(iii) x x x x x x x x x x"
31. As alluded to supra, there is no dispute or disagreement before this Court that the Commission or in other words, the Advocate Commissioner in the instant case was appointed under Order XXVI Rule 13 CPC. Under Order XXVI CPC, there are provisions for appointment of Commissions for various purposes. For instance, Rule 9 provides for appointment of Commissions for local investigations. Rule 10-A provides for Commissions for scientific investigations, Rule 10-B provides for Commissions for performance of ministerial acts, Rule 10-C provides for appointment of Commissions for sale of movable property and Rule 11 provides for Commissions to examine or adjust accounts.
32. Rule 13 under which Commissioner has been appointed in the instant case is one that provides for appointment of Commission for partition of immovable property.
33. A perusal of the scheme of CPC and the arrangement of various Rules under Order XXVI CPC reveals that the procedure to be followed by a Commissioner appointed to make local investigation under Rule 9. is adumbrated in Rule 10 and the procedure to be followed by the Commissioner appointed under Rule 13 to make partition of immovable property is adumbrated in Rule 14 and sub-Rules (1) and (2) thereunder. The procedure to be adopted by the Court, post Commission and post filing of the report has also been set out in sub rule (3) of Rule 14.
34. This makes it clear that two different procedures have been prescribed under CPC for Commissioners. One procedure is for the Commissioners appointed for local investigation under Rule 9 and the other is the procedure for Commissioners appointed for partition of immovable property under Rule 13.
35. This takes us to the question as to whether the procedure adumbrated in Rule 14, particularly sub rules thereunder, is mandatory or directory? Going by the Salem Advocate Bar Association case principle [Salem Advocate Bar Association Vs. Union of India reported in (2005) 6 SCC 344], the Rule is mandatory if consequences are provided for non adherence and it can be construed to be directory if such consequences are not adumbrated in the rules.
36. There are some more parameters for deciding whether a particular rule is mandatory or directory. These parameters were adumbrated by Supreme Court in Raza Buland Sugar Co. Ltd. Vs. Municipal Board, Rampur reported in (1965) 1 SCR 970 = AIR 1965 SC 895. To be noted, this has been referred to in Salem Advocate Bar Assn. case. In Raza Buland Sugar Co. Ltd. case, Supreme Court held that whether a particular provision is mandatory or directory cannot be resolved by laying down any general rule and that it would depend upon the facts of each case and for that purpose, the object of the statute in making the provision is the determining factor. In the instant case, it may be no conundrum to find out the objective regarding laying down of procedure to be followed by the Commissioner appointed for the purpose of partition of immovable properties. The procedure by itself and the fact that it is separate and distinct from the procedure prescribed for a Commissioner appointed for local investigation under Rule 9 (procedure is adumbrated in Rule 10) goes to show that the purpose and object is to ensure equitable distribution of the estate amongst the heirs. In this regard, the Court deems it appropriate to extract paragraphs 16 and 17 of Salem Advocate Bar Assn. case and the same read as follows :
'16. It has been common practice for the parties to take long adjournments for filing written statements. The legislature with a view to curb this practice and to avoid unnecessary delay and adjournments, has provided for the maximum period within which the written statement is required to be filed. The mandatory or directory nature of Order 8 Rule 1 shall have to be determined by having regard to the object sought to be achieved by the amendment. It is, thus, necessary to find out the intention of the legislature. The consequences which may follow and whether the same were intended by the legislature have also to be kept in view.
17. In Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur [(1965) 1 SCR 970 : AIR 1965 SC 895] a Constitution Bench of this Court held that the question whether a particular provision is mandatory or directory cannot be resolved by laying down any general rule and it would depend upon the facts of each case and for that purpose the object of the statute in making out the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory. '
37. Though in Salem Advocate Bar Assn. case, Supreme Court held that Rule 1 of Order 8 is directory, the principles for testing whether a rule is mandatory or directory are nonetheless the same. Therefore, if Rule 14 of Order XXVI CPC is tested using these Salem Advocate Bar Assn. and Raza Buland Sugar Co. Ltd., principles as touchstone, it leads us to the inescapable conclusion that Rule 14 is mandatory as the purpose and object of Rule 14 is equitable distribution of estate amongst the heirs.
38. As far as Rule 14 is concerned, the procedure to be followed by the Commissioner appointed under Rule 13 for partition of immovable property is adumbrated in sub-rules (1) and (2) of Rule 14. If the Commissioner does not adhere to procedures so adumbrated / prescribed, the consequence is, the Court can vary or set aside the report. This is contained in sub-rule (3). In this context, it is deemed necessary to extract Rules 13 and 14 of Order XXVI CPC. The same reads as follows :
'13. Commission to make partition of immovable property.--Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.
14. Procedure of Commissioner.--(1)The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorized thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares.
(2)The Commissioner shall then prepare and sign a report or the Commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the Court; and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same.
(3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the Court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.'
39. In the light of the discussion supra, this Court is of the view that the procedure to be followed by a Commissioner appointed under Rule 13, i.e., procedures adumbrated / prescribed in sub-rules (1) and (2) of Rule 14 are mandatory as non adherence will result in the Court varying or setting aside the report.
40. Be that as it may, based on case laws, it has already been noticed in this judgment supra that even a litigant who does not file objections in trial court in an appropriate case (though not as a general rule) can raise the same at the appellate stage. Therefore, the expression 'Court, after hearing any objections which the parties may make to the report or reports' occurring in sub rule (2) of Rule 14 does not make it axiomatic that the Court will confirm the report if no objection is filed. Even if no objection is filed, the Court will have to examine the report and come to a conclusion as to whether it deserves to be confirmed, varied or set aside.
41. In the light of the narrative and discussion supra, there can be no doubt that courts below erred and were not justified in passing final decree in a partition suit when the procedure adumbrated in Rules 13 and 14 of Order XXVI CPC have not been adhered to in its letter and spirit qua Advocate Commissioner's report and therefore, the aforesaid substantial question of law is answered in favour of appellants.
42. Aforesaid substantial question of law being answered in favour of appellants takes us to the question as to the further course of action and logical end / conclusion. This Court has given its careful and anxious consideration to what should be the course of action. Though plaintiff has been ploughing a lone furrow, the legal theory that in a partition suit, all the parties to the lis are plaintiffs and that they are entitled to equitable distribution of the estate cannot be lost sight of . Therefore, the ideal solution is to remand the matter.
43. Orders of courts below in the final decree proceedings are set aside. However, considering the length of time, nature of litigation and scope of the issues, this court deems it appropriate to remand the matter to the first appellate court instead of trial court. The obtaining legal position that the first appellate court is still a court of facts has also weighed in the mind of this court in taking this course of action. For the purpose of abundant clarity, it is made clear that when the order of the courts below in the final decree proceedings are set aside, the Commissioner's report dated 06.08.2006 which is the epicenter of the instant second appeal is also set aside. The scope of remand is set out in the form of bullet points for the sake of convenience and clarity. The same are as follows :
(a)Remand is to the first appellate court, i.e., Principal District Judge's Court, Thanjavur;
(b)Exercising powers under Order XLI Rule 26-A CPC, this Court fixes the date of hearing for appearance of parties and the same shall be 16.08.2018;
(c)First appellate court shall appoint a new Advocate Commissioner and while so appointing, the first appellate court shall ensure that the Advocate Commissioner has substantial experience in handling suit of this nature, besides having a standing of not less than 10 years at the Bar;
(d)First appellate court shall appoint an Advocate Commissioner other than the Commissioner who has already been appointed. To be noted, this shall not be taken as casting any aspersions on the Advocate Commissioner. It is only to avoid further complexities. It is to be borne in mind that what has been assailed is the Commissioner's report and not the Advocate Commissioner;
(e)Advocate Commissioner shall be given a time frame of three months and shall be directed to file his report on or before 16.11.2018;
(f)First appellate court shall pass orders in the final decree application within three months therefrom, i.e., on or before 18.02.2019;
(g)Advocate Commissioner's remuneration and expenses in its entirety shall be borne wholly by the three appellants herein, who are respondents 1,6 and 7 before the first appellate court (defendants 1,6 and 7 before trial court);
(h)If any party fails to respond to the notices issued by the Advocate Commissioner or seek an adjournment which is negatived by the Commissioner at his discretion, such party shall not be entitled to raise that as a ground and create a second round of litigation;
(i)Equally, the parties to the lis who do not file objection within the stipulated time cannot canvass the same later or in appeal as the same would amount to second round of litigation;
(j)With regard to respondent Nos.12 to 15 before this Court (i.e., Noorjahan, Abdul Lathif, Abdul Kareem and Abdul Rahman), they shall not expand the scope of this remand by raising new issues on the ground that they were not parties to the proceedings earlier. Their rights if any are reserved to the limited extent of working out the same in the execution proceedings without this order coming in the way;
(k)It is made clear that preliminary decree has been given a complete legal quietus by all parties and no party shall revisit the same.
(l)First appellate court shall not entertain any interlocutory application which in its discretion will have the scope of revisiting the preliminary decree or expanding the limited scope of this remand.
44. With the above directions, the instant second appeal is disposed of, setting aside the judgments / decrees of courts below in the final decree proceedings (including the Advocate Commissioner's report) and remanding the matter in the aforesaid manner. Consequently, connected civil miscellaneous petition is closed. Considering that this is a partition suit and considering that adversaries are siblings, parties are left to bear their respective costs in the instant second appeal.